I've provided this lengthy set of facts because I think Powell can reasonably argue that the facts in Flynn's case are very different from the Cray facts. Specifically, Flynn will be relying on credible claims of a conflict on the part of Flynn's first lawyers as well as government misconduct and undue pressure brought against a vulnerable family member by prosecutors to coerce a guilty plea. Judge Sullivan will have to decide whether that constitutes "a fair and just reason for requesting the withdrawal". Cray will no doubt offer guidance, but the facts should provide Sullivan with the latitude to tailor a "fair and just" resolution.
As will be seen below, and at any evidentiary hearing ordered by this Court, Mr. Flynn’s guilty plea (and later failure to withdraw it) was the result of the ineffective assistance of counsel provided by his former lawyers, who were in the grip of intractable conflicts of interest, and severely prejudiced him.
Here's how Powell begins her presentation of Covington's conflict and its detrimental effect on Flynn:
First, Mr. Flynn’s former counsel at Covington & Burling LLP (“Covington”) developed what is often referred to as an “underlying work” lawyer-to-client conflict of interest early in the representation. It arose from mistakes that the firm made in the Foreign Agents Registration Act (FARA) filings it had made for Mr. Flynn and his company Flynn Intel Group (“FIG”). Rather than disclosing the errors—and insisting Mr. Flynn obtain new counsel to fix the problem, or allowing Covington to continue the representation (and the fix), knowing the truth—the lawyers said nothing to Mr. Flynn, charged him hundreds of thousands of dollars to re-do its own prior work, and still did not take the readily available steps of amending or supplementing the FARA forms.
OUCH! IOW, Covington failed to disclose its underlying FARA mistakes to Flynn, charging him hundreds of thousands of dollars to fix their own mistake, and then did a bad job of it:
At every turn, the lawyers’ interest was in obscuring their original errors, hiding the fact that they had never come clean with their client, and trying ever-harder to sweep their problems under the rug by arranging for and preserving a plea that Mr. Flynn wanted to withdraw.
And so, Powell finishes her opening statement with this one, two:
In this Circuit, a defendant seeking to withdraw a guilty plea before sentencing must establish the “prejudice” element by showing “that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Taylor, 139 F.3d at 929-30. In this case, the evidence will show that if Mr. Flynn had been given constitutionally adequate advice, he would not have pled guilty in 2017, and he would have withdrawn his plea in 2018. The taint of Covington’s constitutional violations permeates this case.
In addition, there were defects in the Rule 11 plea colloquy. When this Court extended the colloquy in December 2018, among the questions this Court did not ask was if any additional promises or threats were made to Mr. Flynn. The answer to that question is yes, there were. Moreover, this Court ended the sentencing hearing noting that it had “many, many, many more questions” about the factual basis for the plea. Hr’g Tr. Dec. 18, 2018 at 50:12-13. Accordingly, withdrawal of the plea should be allowed pursuant to Cray, 47 F.3d 1203.